The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

The long-running controversy over a Texas voter ID requirement — a dispute that once kept Justice Ruth Bader Ginsburg up all night writing a dissent — returned to the Supreme Court on Friday as challengers sought again to stop the law’s enforcement. The application (Veasey v. Abbott, 15A999) can be found here; it argued that the law is the strictest in the nation in its demands for identification before a voter may cast a ballot. . . .

Kudos to the lawyers who came up with this legal writing strategy. A couple sued Peabody Energy and alleged a civil rights violation. The police arrested the couple for holding up a banner during Peabody’s shareholder’s meeting.

The Complaint filed against Peabody Energy included lyrics to a song called “Paradise,” by John Prine. Who knows how the plaintiff’s counsel found it. The lyrics are a perfect choice.

The song is about coal mining exploitation by a company. You guessed it – the company’s name is Peabody. The lyrics about the big, bad coal company abusing the rights of common people strike the right chord.

Peabody’s reaction was understandable, but a costly mistake. Peabody filed a Motion to Strike. Strike what? The song lyrics – in a lawsuit about freedom of speech. To be kind, perhaps Peabody’s counsel did not think that one through.

Both The Washington Post and The Guardian have created databases to track numerous details of every fatal shooting by a police officer and other law enforcement in the line of duty in the United States. The Guardian’s project is called “The Counted.” Both the Post and The Counted seek the public’s input, photographs, and videos in an attempt to make their respective databases as comprehensive as possible. -CCE

I’ve gotten some good feedback and questions in response to my post [April 10, 2015] yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible? . . . .

I’ve been asked a lot today [April 9, 2015] about the shooting of Walter Scott. The topic that always comes up is the so-called ‘fleeing felon’ rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott….

‘Crime consistently ranks as one of the most followed and discussed topics by the public, and it receives more attention in local news media than almost any other subject. A recent Pew Research Center report reinforces these findings but also suggests that certain groups of residents pay closer attention to local crime than others in the three cities studied. A difference that particularly stands out is between racial and ethnic groups. . . .’

Virginia lawmakers have passed a bill requiring state leaders to set limits on how public schools can restrain or isolate students.

Last summer, ProPublica and NPR reported that new federal data showed the practices – which can include pinning down or tying up students or locking them alone in dark rooms – were used more than 267,000 times nationwide in the 2012 school year. Hundreds of children are injured each year and at least 20 have died as a result. . . .

The panel affirms suppression of drugs found during a traffic stop in Louisiana. The car with a California license plate was occupied by three people on a cross-country trip from California to Miami. Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented. Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.

Typically, consent to search a vehicle applies to any unlocked containers within it. However, ‘[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.’ ‘Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.’ The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk.

While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it. Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

Use this website to order some of the publications listed or, as shown here with the 2014 Edition of the Federal Firearms Regulations Reference Guide, download it to your computer or mobile device. – CCE

The Federal Firearms Regulations Reference Guide – 2014 Edition (ATF P 5300.4) is now available. Features of the 2014 edition include updated sections on ATF rulings, general information, and questions and answers. The guide may be downloaded free of charge from the atf.gov website (https://www.atf.gov/content/library/firearms-publications-library) in both PDF and e-book formats. Printed copies of the guide may be purchased through the Government Printing Office (GPO) online at http://bookstore.gpo.gov/ or by telephone at (866) 512-1800 (Canada & USA customers outside the DC area) or (202) 512-1800 (Washington, DC area or International customers).

You can also use the links below to download a version to your computer or mobile device.

‘Today[December 9, 2014], the FBI released its annual Hate Crime Statistics report, which revealed that 5,928 hate crime incidents involving 6,933 offenses were reported by our law enforcement partners to the Bureau’s Uniform Crime Reporting (UCR) Program in 2013. These hate crime incidents impacted a total of 7,242 victims—which are defined as individuals, businesses, institutions, or society as a whole. The number of reported hate crimes last year is down slightly when compared to 2012 UCR figures—5,928 in 2013 versus the 2012 figure of 6,573. Hate Crime Statistics, 2013—the first UCR publication to contain data collected under the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act of 2009—has a few changes from previous reports. First, biases against gender (male or female) and gender identity (transgender and gender nonconformity) have been added to the list of bias categories. And in response to the Shepard/Byrd Act, we modified our data collection so that reporting agencies can indicate whether crimes were committed by, or directed against, juveniles.’

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has comedownhard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

And, at oral argument recently, on what is perhaps the most significant criminal justice issue of the day — how broadly we should interpret criminal statutes — Scalia has turned his considerable intellect again in a defense-friendly way.

How, you ask?

Whether to interpret a criminal statute broadly or narrowly is an intricate question. The ‘Rule of Lenity says that criminal statutes should be interpreted narrowly. Yet courts often read in a meta-‘Rule of Lenity’ that says that the Rule of Lenity itself should be interpreted narrowly.

Moreover, judicial review of the scope of a criminal statute is tricky. There are thousands of federal criminal statutes on the books and Congress makes more every year. About 95% of the time, people charged with federal crimes plead guilty. Courts are highly resistant to litigate the meaning and breadth of a federal criminal statute before trial, which means that challenges to the interpretation of a statute are possible in a very small number of cases.

What that means is that prosecutors’ interpretations of federal statutes are highly unlikely to be meaningfully challenged. And, when they are, generally they are interpreted broadly. . . .

“No person…shall be compelled in any criminal case to be a witness against himself….”

The Supreme Court has stated that the Fifth Amendment only covers “testimonial” evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.

What about if the defendant has encrypted files on his computer? Can the prosecution force the defendant to decrypt them? Some courts have said no. Other courts have said yes.

Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I’ve used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.

[A] judge has ruled that you can be forced to relinquish your fingerprint to investigators seeking access to your device. The reason, says the judge, is that the fingerprint isn’t knowledge like a password, but is instead a physical object of sorts, like a key or a DNA sample.

The ruling was made recently by Virginia Beach Circuit Court Judge Steven Frucci, and was the result of a case against EMS captain David Baust, who was accused of attempted murder. The case’s prosecutors wanted access to Baust’s phone, believing that it might have a video of the alleged crime, but the defendant’s lawyer argued against this.

[I]t’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t . . . .

One workaround to this issue could be to just turn off your phone if cops approach. In that case, you’d have to enter your four-digit pin when you turn it back on, even if you use Touch ID. . . .

A report released by Access/RI shows that in the two years since Rhode Island changed its open records law, enforcement of the law has been less than stellar.

Access/RI isan alliance of First Amendment advocates and MuckRock, a group that works with journalists to secure and analyze public records. They show execution of the updated rules is extremely rare. The report states what is really happening isdifferent than what policy makers had hoped would transpire when legislation went through.

When Rhode Island Governor Lincoln Chafee signed the Access to Public Records Act into law in June of 2012 it was noted that employment contracts and other documents that had been sealed in the past would now be public and readily available.

Access/RI found that restructured law was not being followed when routine documents such as arrest reports and contracts were requested. Many school systems have been unwilling to comply with the law and instead give heavily redacted copies of employment contracts. . . .

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

I’ve written a few posts about the doctrine of ‘communicated character,’ which allows a defendant to present evidence of the alleged victim’s prior violent acts, not to prove the victim’s violent tendencies, but instead to prove the defendant’s reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim’s violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let’s take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014). . . .

Mr. Collins shares excerpts from nine commentaries on the U.S. Supreme Court’s recent ruling in McCullen v. Coakley, which removed the “buffer zone” around abortion clinics in favor of First Amendment rights of those who protest abortion. -CCE

That Supreme Court ruling on cellphones was supposed to be reassuring. The government needs a warrant to search your phone, the court ruled.

But read Riley vs. California more closely and it’s just a little scary — particularly for those who pay little attention to what’s on their smartphones. If you don’t think your phone exposes your life-all of it-take it from the nation’s highest court.

Your phone, says the court, is your life. Cracking it open is even more revealing than rummaging through your home, which the Fourth Amendment’s protection against unreasonable searches was designed to protect. . . .

Sometimes what the Supreme Court almost does is more striking than what it says in its majority opinion. Such is the case with today’s 5-4 ruling that federal agents may go after a ‘straw’ purchaser who buys a gun for someone else, even if both people are legally eligible to own firearms.

What’s amazing about this decision is that four dissenting members of the court—led by Justice Antonin Scalia—were prepared to rule against the federal government in a fashion that would have undermined countless prosecutions of alleged gun traffickers. To put this more starkly: The Supreme Court is one vote away from judicially nullifying one of the most common tools U.S. law enforcers use to deter and punish criminals who send other people into gun stores to purchase firearms and circumvent the federal background-check system. . . .

Update: With last weekend’s shootings in Santa Barbara, this collection, first published July 24, 2012, unfortunately seems relevant again. We’ve re-organized our roundup and added new reporting about guns and gun violence in America—looking at mass shootings and mental health, as well as other kinds of gun violence.

Please include your suggestions of other stories in the comments.

Are Mass Shootings Increasing? Depends on How You Count Them

Criminologists have made the same point again and again: the number of mass shootings in America is not increasing. Experts told the Los Angeles Times that mass shootings represent only a small fraction of the annual deaths due to gun violence, and that police data indicate that the overall count of mass shootings per year has not shown any significant increase over time. This conclusion is based on the FBI’s broad definition of a mass murder: four or more people murdered in the same incident, typically in the same location. . . .

Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.

In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. . . .